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ELCDismissedNot stated in the extract provided· [2019] KEELC 4425 (KLR)

Peter Kimani Chege v David Salim Mwarangu Githiomi [2019] KEELC 4425 (KLR)

Environment and Land Court
25 February 2019
894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to dismiss an adverse possession land suit just because the certified title extract was missing, calling it a curable technicality.

What this practically means

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Executive summary

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The Defendant raised a Notice of Preliminary Objection dated 9th November 2018 against the Plaintiff's application of 4th October 2018, contending that the Plaintiff's adverse possession suit over land parcel NGONG/NGONG/8592 ONGATA RONGAI was materially defective and incapable of being heard because the Originating Summons was not supported by an annexed certified extract of title, as required by Order 37 rule 7 of the Civil Procedure Rules. The Defendant sought dismissal of the entire suit with costs and the Plaintiff's immediate vacation of the land as a trespasser. The Plaintiff opposed, relying on authorities including Mukhisa Biscuit and Ann Itumbi Kiseli, arguing that the missing extract was not fatal. Justice Christine Ochieng framed the sole issue as whether the suit should be dismissed for non-compliance with mandatory provisions. Applying Order 37 rule 7, Article 159(2)(d) of the Constitution, and the Kiseli authority that the extract may be produced before hearing or at trial, the court found the defect curable and no prejudice demonstrated by the Defendant. The preliminary objection was held unmerited and disallowed, with costs in the cause.

Key legal issues

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01

Whether failure to annex a certified extract of title to an adverse possession originating summons warrants dismissal of the suit

Holding

No; the defect is curable and the extract may be produced before hearing or proved at trial

Reasoning

The court applied Order 37 rule 7 requiring the extract but held, following Ann Itumbi Kiseli, that the title or extract can be produced by affidavit or in viva voce evidence, so long as it is before the court by the end of trial. No prejudice to the Defendant was demonstrated. Article 159(2)(d) tipped the balance toward substantive justice, so the objection was disallowed.

p. 2
02

Whether the preliminary objection raised a pure point of law

Holding

The objection was a defective point of law since it could not succeed without considering facts and discretion

Reasoning

Citing Mukhisa Biscuit, the court recognised that a preliminary objection cannot be raised where facts must be ascertained or where the exercise of judicial discretion is sought. The Defendant's objection depended on the court's discretion to dismiss the suit for a curable procedural omission, and the Defendant showed no prejudice.

p. 1

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or discretion exercised
  • In an adverse possession suit, the certified extract of title may be produced before hearing or at trial; omission from pleadings is not fatal
  • Courts should administer substantive justice without undue regard to procedural technicalities

Court orders

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  1. 1.The Notice of Preliminary Objection dated 9th November, 2018 is unmerited and is disallowed
  2. 2.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 7
  • Constitution of KenyaArticle 159(2)(d)
  • Limitation of Actions ActSection 38

Cases cited (5)

  • Mukhisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Company Limited
    (1969) EA 696
  • Independent Electoral & Boundaries Commission Vs Jane Cheperenger & 2 Others
    (2015) eKLR
  • Aviation & Allied Workers Union Kenya Vs Kenya Airways Ltd & 3 others
  • Josiah Njoroge Njuguna Vs Ingobor Farm Co. (Registered Trustees) & 3 Others
    (2018) eKLR
  • Anne Itumbi Kiseli Vs James Muriuki Muriithi
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction; Article 159(2)(d) of the Constitution and Order 37 rule 7 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Kimani Chege v David Salim Mwarangu Githiomi [2019] KEELC 4425 (KLR)", Case Analysis (2019). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4425/eng@2019-02-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.